Proving workplace discrimination and retaliation claims can be difficult as it is a very rare occasion wherein a supervisor will readily acknowledge that a termination or other adverse action was based on the employee’s sex or race or due to their complaints about perceived unlawful activity. The annual performance review is often a fertile ground for the discovery of circumstantial evidence in support of a discrimination or retaliation claim. Preliminarily, employers have yet to design a perfect performance review form that accurately assesses each employee’s performance on a consistent basis. However, the performance review should be conducted in a non-discriminatory manner by supervisors that are specifically trained to perform the task and based on objective reasons that have been well documented during the period in question.
A classic example of evidence of retaliation arising out of a performance review can be seen when a consistently top performing employee receives an extremely poor review shortly after reporting an incident of discrimination to human resources. California law requires that an employee must have suffered some form of “adverse action” by the employer in response to the employee’s complaints in order to prevail on a FEHA retaliation claim. In that a poor performance review will likely impact the employee’s ability to obtain future promotions with the employer, the employee can likely meet the adverse action requirement for purposes of their claim. Other factors to examine in the review include whether or not the employer has documented the past performance issues referenced in the review particularly if the employer has a progressive discipline policy. For example, the supervisor’s failure to utilize available forms confirming a verbal counseling session or incident may raise a red flag in a review that utilizes the incident as the basis for a low score on the performance review. Furthermore, questionable word choices in the review such as the fact that the employee “has lost a step” or is “low energy” may be utilized as evidence in support of an age discrimination claim. Additionally, the fact that all of the documentation, such as deficiency notices or records of verbal counseling, were generated shortly after an employee complained of sexual harassment may be circumstantial evidence of retaliation. Finally, a negative performance review that is premised on subjective measures such as the fact that the employee is not a “team player” may evidence retaliation if the employee recently complained of unfair treatment.
Due to the subtle nature of this type of evidence and the corresponding difficult burden in proving discrimination and retaliation claims, it is extremely important to be vigilant and document questionable or unfair incidents that you have witnessed or experienced shortly after they occur. The majority of performance reviews provide an employee with an opportunity to respond in writing to the issues raised by the review. In any litigation arising out of your former employment, it is likely that your former employer’s attorney will attempt to take advantage of the fact that there is no mention of discrimination or unfairness in the comment section of your review. If you feel that you are a victim of discrimination or retaliation by your current or former employer, contact the Perrin Law Group today for a free consultation.